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Scott C. Withrow

The federal anti-kickback law makes it a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce a person to refer an individual to a person for the furnishing of any item or service covered under a federal healthcare program, or to purchase, lease, order, arrange for, or recommend any good, facility, service, or item covered under a federal healthcare program.

The term any remuneration encompasses:

  • Any kickback, bribe, or rebate
  • Direct or indirect actions
  • Overt or covert actions
  • Cash or in kind
  • Any ownership interest or compensation interest

Knowing and willful conduct is a necessary element of this criminal offense. The burden of proving intent beyond a reasonable doubt makes criminal prosecution difficult but not impossible, and the government has demonstrated some willingness to bear the criminal burden of proof. Pursuant to a 1987 Congressional mandate, safe harbor regulations have been promulgated in more than 20 general areas to give healthcare providers some protection from the extremely vague prohibition of the anti-kickback law.

Criminal penalties for violations of the anti-kickback law include up to five years imprisonment plus fines up to $25,000 for each violation. The Balanced Budget Act of 1997 created a civil monetary penalty for anti-kickback violations in addition to the criminal penalties and the sanction of exclusion. The penalty is treble damages (three times the illegal remuneration) plus $50,000 per violation plus possible exclusion from Medicare.

A determination of requisite intent is critical to the application of the anti-kickback law. In the context of this statute, knowing and willful conduct means providing remuneration with some sort of intent to induce referrals. The exact nature of the required intent has been the subject of extensive litigation. The government's position is that an anti-kickback violation exists if a purpose of the remuneration is to induce referrals, even if it is not the only purpose (e.g., some services were rendered in consideration for the services).


Scott C. Withrow, Esq., is a partner, Withrow, McQuade & Olsen, LLP, Atlanta, Ga. (swithrow@wmolaw.com).

Publication Date: Saturday, March 01, 2008

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